The Supreme Court’s decision in Obergefell v. Hodges was a landmark for LGBTQ+ rights — a tremendous cultural and legal win for expanding the definition of who was included in the promise of public life in America.
Recently, the topic has received renewed attention after coverage of remarks by Justice Samuel Alito in a book, So Ordered, that collects a number of his speeches. In it are remarks from a speech where he said that in his view Obergefell was “perhaps the decisive point in our nation’s turn against religious liberty.”
And while he made the caveat in a rare on-camera interview with CBS that he does not see a realistic prospect of that ruling being overturned, there is a big difference between realistic prospects and the invitation to relitigate an issue.
That invitation was most directly extended by one of his colleagues, Justice Clarence Thomas. In 2022, Thomas wrote in his concurrence in Dobbs v. Jackson Women’s Health Organization, the decision overturning constitutional protections for abortion, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
Griswold v. Connecticut protected the right to privacy, and Lawrence v. Texas struck down anti-sodomy laws — two foundational cases that many Americans take for granted today. Obergefell established marriage equality.
LGBTQ+ Americans should feel reassured that marriage equality remains legally protected, here in Minnesota and nationally through Obergefell and the bipartisan Respect for Marriage Act. And even in a time of challenge for LGBTQ+ rights, an overwhelming supermajority of Americans support the right to same-sex marriage.
Attempts to seriously revisit the Obergefell ruling have not gained traction so far, but the threat remains real.
In an interview with The Advocate earlier this year, Jim Obergefell himself made it plain that he didn’t think 11 years later we would have reason to fear that marriage would be lost: “But for almost 50 years, people didn’t think abortion rights would be lost because the Supreme Court believed in precedent. Well, they no longer do.”
While much of the current discourse around LGBTQ+ rights has centered on the rights and protections of transgender people, this is all part of a broader strategy by opponents of equality to undercut public support for LGBTQ+ communities and our rights as a whole. And they are chalking up some victories at the high court that have implications for every member of our broader community, including rulings such as Chiles, which undercut protections from so-called conversion “therapy” practices, and Mahmoud, which gave the green light for families to opt their children out of LGBTQ+ content in school curricula.
Opponents of equality see this as one fight. We should too.
This term, the Supreme Court takes up another case at the intersection of religious freedom and LGBTQ+ rights: St. Mary Catholic Parish v. Roy, which asks whether a religious school can seek public funding while discriminating against LGBTQ+ students and families. The case might not be about marriage specifically, but it invites a question the court has been eager to engage with around the intersections of public protections, religious liberties and personal freedoms. It’s one to watch closely.
And well before that ruling comes out, we will have a preview of how voters view marriage equality: In November, Virginia’s ballot includes a measure seeking to repeal the state’s unenforceable constitutional ban on same-sex marriage.
These questions might not be on our doorstep in Minnesota this year, but they are ones we should be ready for.
Marriage equality has transformed so many lives for the better. I celebrated my own 15th wedding anniversary last year. Those are stories we need to keep telling.
In 2008, when President Barack Obama was first elected, we watched as Proposition 8 passed in California, prohibiting our marriages. In 2012 Minnesota changed that narrative. We need to keep reminding our neighbors, and our nation, of the ways Minnesotans of all faiths and walks of life came together to defeat our ballot measure and enshrine marriage equality into law. It’s a shining example of how our communities’ solidarity and strength can change hearts and minds.
Now is the time to build stronger communities, movements and organizations so we are ready for the work ahead. If you’ve been sitting on the sidelines, I’d encourage you to lean in again — volunteer, give, get engaged.
Today, as opponents of equality seek to chip away at the edges of our communities and our shared rights, we need to stand together. Yes, they’re coming for marriage — but we’re going to make sure they don’t get there.
